Central Administrative Tribunal - Delhi
Shri P.S. Pruthi vs Union Of India Through on 7 February, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4405/2012 Order reserved on 04.02.2013 Order pronounced on 07.02.2013 Honble Shri George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Shri P.S. Pruthi Age 58 years S/o Sardar T.S. Pruthi R/o G-4, Sector-14, Chandigarh. Applicant (By Advocate: Ms. Jyoti Singh, Sr. Advocate & Shri S.K. Gupta) Versus Union of India through 1. Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Chairman, Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi. 3. Ms. Sandhya Baliga Member (L&J), Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi. 4. Ms. Shobha L. Charya, Member (P&V), Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi. 5. Ms. Lipika Majumdar Roy Choudhury, Member (ST), Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi. ..Respondents (By Advocate: Shri Rajeev Kumar) O R D E R
Honble Sh. G. George Paracken:
The applicant has filed this Original Application(OA for short) challenging the selection of the Private Respondents 3 to 5 Ms. Sandhya Baliga, Ms. Shobha L. Charya and Ms. Lipika Majumdar Roy Choudhry made by the Committee of Secretaries (COS for short) in the month of July, 2012 to the post of Member, Central Board of Excise and Customs (CBEC for short) but at the same time rejecting his candidature for the aforesaid post. He has also challenged the appointments made by them vide Office Order No.328/2012 dated 02.08.2012, Office Order No.237/2012 dated 09.08.2012 and Office Order No.363/2012 respectively. While Ms. Sandhya Baliga was appointed against an existing vacancy, Ms. Shobha L. Charya and Ms. Lipika Majumdar Roy Choudhry have been appointed separately against the vacancies arisen on 09.08.2012 and 04.09.2012 respectively. He is further aggrieved by the Respondents letter F.No.A.12026/15/2011-AD.I dated 16.11.2012 notify the vacancy for the post of Member in CBEC occurred on 31.12.2012 for which he had already laid claim during the previous selection. He has, therefore, sought the following reliefs in this OA:-
(i) Call for the records of selection in pursuance to panel prepared for 2012-13 in terms of circular dated 2.101.2011.
(ii) Quash and set aside the panel for the post of Member, CBEC as prepared for the year 2012-2013. Consequently, quash the appointment of respondent Nos. 3 to 5 vide appointment letters at Annexure A-1 (colly).
(iii) Quash and set aside the circular dated 16.11.2012 by which, fresh applications have been invited (Annexure A-2).
(iv) Direct the official respondents to recast the panel of the year 2012-2013 for the post of Members, CBEC as per the applicable rules and the guidelines of the Prime minister and consider the case of the applicant as per merit in terms of circular dated 21.10.2011 and in case, the applicant is found in the panel on merit, he may be appointed on the vacancy occurring on 31.12.2012/01.101.2013 with all consequential benefits.
(v) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
2. The factual matrix of the case is that the Ministry of Finance, Department of Revenue, Govt. of India has notified the CBEC (Chairman & Members) Recruitment Rules, 2006, vide notification dated 02.02.2006. The method of recruitment prescribed in the said rules is by deputation/absorption. Among the details regarding eligibility, qualification etc. of the candidates for the aforesaid post, it has been prescribed in the said notification that they should have at least one year residual service on the date of occurrence of vacancy for which the selection is being made. The relevant part of the said Notification is as under:-
Deputation/Absorption
(i) Officers of the Central Government appointed on a regular basis in the grade of Rs.24,050-26000/- with 2 years of qualifying service in the grade; OR
(ii) Officers of the Central Government appointed on a regular basis in the grade of Rs.24,050-26,000/- with 2 years of combined regular service in the grades of Rs.24,050-26,000/- and Rs.22,400-24,500/-;
AND possessing the following qualification:-
(i) Having at least 20 years of experience in administering and running the indirect tax administration in the Central Government with at least 10 years of experience in the field formations of Central Board of Excise and Customs.
(ii) Having high professional merit and excellence; and
(iii) Having impeccable reputation of integrity.
Note:
1. The normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
2. No person with less than one year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration. (emphasis given)
3. The aforesaid notification was amended vide Central Board of Excise and Customs (Chairman and Members) Recruitment (Amendment) Rules, 2008 notified on 24.12.2008. The relevant part of the said amendment is reproduced as under:-
Rs. 80,000 (fixed) Deputation/Absorption
(i) Officers of the Central Government appointed on a regular basis in the grade of Pay Band-4 Rs.37400-67000 with Grade Pay of Rs.12000/- per month.
AND possessing the following qualification:-
(i) Having at least 13 years of experience in administering and running the indirect tax administration in the Central Government with at least 10 years of experience in the field formations of Central Board of Excise and Customs.
(ii) Having high professional merit and excellence; and
(iii) Having impeccable reputation of integrity.
Note:
1. The normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
2. No person with less than one year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration.
(emphasis given)
4. Again the Respondents, vide notification dated 30/05/2012 amended the Central Board of Excise and Customs (Chairman and Members) Recruitment Rules, 2006 further. The relevant part of the said notification is also reproduced as under:-
Deputation/Absorption
(i) Officers of the Central Government having one year regular service in the grade of HAG pay scale of Rs.67,000-79,000/- per month.
And possessing the following essential qualifications:-
Having at least 15 years of experience in administering and running the indirect tax administration in the Central Government with at least ten years of experience in the field formations of Central Board of Excise and Customs.
(ii) Having high professional merit and excellence; and
(iii) Having impeccable reputation of integrity.
Note:
1. The normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
2. No person with less than one year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration. (emphasis given)
5. Apart from the above Recruitment rules as amended from time to time, the Cabinet Secretariat vide its Annexure A-10 Note dated 8.6.2006 has also held as under:-
(b) in order to save time, instead of circulating each vacancy separately, a panel valid for one year (calculated on the basis of number of anticipated vacancies x 1.5 rounded to nearest whole number) will be prepared. After ACC has approved this panel, selection will be made strictly in the order given in the panel, with the approval of the Finance Minister. In case it is felt that a deviation from the panel is necessary, the same will be sent with full justification to the ACC for approval with the concurrence of the Finance Minister;
) if a panelist whose turn has come for Member has less than one year of residual service on the date of occurrence of vacancy, he will be passed over without any further procedure. (emphasis given) 6 Based on the aforesaid Recruitment Rules as well as the Guidelines, the respondents, vide their letter dated 21.10.2011 addressed to all Chief Commissioners of Customs and Central Excise/equivalent officers and Members of the CESTAT informed that some posts of Members in the CBEC in the Department of Revenue in the pay scale of Rs.80,000/- (fixed) were likely to fall vacant in the financial year i.e. 2012-2013. They have also informed them that the aforesaid posts were proposed to be filled up on deputation/absorption basis in terms of the CBEC (Chairman and Members)the Recruitment Rules, 2006 as amended from time to time. In the said letter also, the Respondents have indicated the required qualifications of the candidates for the aforesaid post which is as under:-
(I) Officers of the Central Government appointed on a regular basis in the grade of Pay Band-4 Rs.37400-67000 with Grade Pay of Rs.12000/- per month; (Revised HAG scale of Pay Rs.67,000-79,000/-).
AND (II) possessing the following qualification:-
(a) Having at least 15 years of experience in administering and running the indirect tax administration in the Central Government with at least 10 years of experience in the field formations of Central Board of Excise and Customs.
(b) Having high professional merit and excellence; and
(c) Having impeccable reputation of integrity.
Note:
(i) The normal eligibility conditions of maximum age of 56 years on the date of closing of applications shall not be applicable in cases of absorption.
(ii) No person with less than one year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration.
(emphasis given)
7. The applicant and other private respondents have applied for the aforesaid post. There were altogether 4 vacancies occurred during the financial year from 01.04.2011-31.03.2012. The dates of occurrence of those vacancies were 1.5.2012, 01.08.2012, 4.9.2012 and 31.12.2012 respectively. As far as the applicant is concerned, he was promoted as the Chief Commissioner of Income Tax on 09.11.2011. According to him, he fulfilled all the eligibility criteria including more than one year of qualifying service as Chief Commissioner of Income Tax as on the date of occurrence of the 4th vacancy on 31.12.2012. According to him, if the Selection Committee had seen qualifying service of one year in the Grade Rs.67000-79000 as on that date, there would have been absolutely no case of his exclusion from the panel. Moreover, since the anticipated vacancies for the post of Member (CBEC) for the year 2012-2013 were four, a panel of at least 6 officers was required to be finalized whereas the official respondents finalized the panel of only 3 officers. Again, according to him, as regards the zone of consideration is concerned, it is an established practice that it must consists of twice the number of vacancies plus four, i.e., at least 12 persons but in the present case, the respondents have limited the zone of consideration only to the empanelled three officers which was illegal.
8. The learned Sr. counsel for the applicant, Ms. Jyoti Singh has submitted that the applicant was excluded from the panel only for the reason that he did not have one year regular service on the first date of financial year 2012-13, i.e., 01.04.2012 for which selection was made as he was appointed as a Chief Commissioner only w.e.f. 09.09.2011. On the other hand, her contention is that as submitted earlier, going by the relevant Recruitment Rules and the Guidelines, since out of the four vacancies occurred during the period in question, the 4th vacancy has arisen only on 31.12.2012, he had the requisite one year regular service as Chief Commissioner as on 31.12.2012. She has also argued that neither in the notification dated 02.02.2006 notifying CBEC (Chairman and Members) Recruitment Rules, 2006 nor the subsequent amendments carried in the years 2008 and 2012 nor in the letter dated 21.10.2011 inviting applications for selection to the post of Members of the CBEC, the respondents have clarified that it is from the first day of the financial year that one year regular service will be determined.
9. Ms. Jyoti Singh has also submitted that this Tribunal had already settled the legal position involved in this case vide the common order dated 02.09.2011 in OA No.3823/2010 and connected cases Shri Laxman Das Vs. Union of India and Another. In the said case both the applicants have sought intervention of this Tribunal to quash the entire selection for the post of Member, Central Board of Direct Taxes for the year 2010-
11.
10. The Tribunal after having heard the rival contentions has held as under:-
17. We may consider the issue of crucial date and cut off date which are relevant and pertinent to determine the controversy in the case. (i) what are the crucial dates on which the eligibility of the competing candidates are to be considered for the post and (ii) what is the cut off year and crucial date up to which the ACRs of the candidates is to be considered for the purpose. One must accept that such a crucial date if fixed in a manner in the statutory rule will be binding on the parties. If the guidelines envisage cut off or crucial date, in the absence of the provision in the rule, the same will supplement and guide the respondents. In the absence of any provision in the rule and the executive instructions or if there is any confusion or alternative possibilities, the Tribunal can provide purposive interpretations and constructions in order to avoid hardship in all conceivable cases. It must be understood that whatever date is fixed, some will fall on the right side of the date and some persons will fall on the wrong side of the date. That cannot make the crucial date or cut off date arbitrary unless the date is so wide off the mark as to make it wholly unreasonable. This view was expressed by the Honourable Supreme Court in Union of India versus Parameswaran Match Works [(1975) 1 SCC 305] and Ami Lal Bhat (Dr) versus State of Rajasthan [(1997) 6 SCC 614] in respect of fixation of cut off dates. In a catena of decisions of the Honourable Apex Court it has been held that the crucial date and cut off date can be fixed by the executive authority keeping in view many administrative and other attending circumstances. It also held the view that fixing such dates comes within the domain of the executive authority and the court should not normally interfere with such fixation of a date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. We draw support from the dicta of Honble Apex court in the case of State of Punjab versus Amar Nath Goyal (AIR 2006 SC 171). Further, in large number of judgments of Honble Apex Court viz. D. G. Gouse and Co. versus State of Kerala [(1980) 2 SCC 410]; State of Bihar versus Ramjee Prasad [(1990) 4 SCC 212] it has been held that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark.
18. As per the RR, all Chief Commissioners of Income Tax or equivalent of the Central Board of Direct Taxes having essential qualifications, namely at least 15 years of experience in administration and running the direct tax administration in the Central Government with at least 10 years of experience in the field formations of CBDT etc. shall be eligible for consideration for Selection for the post of Member, CBDT. Note 2 below the Column 12 of the RR stipulates another important eligibility condition that no person with less than 1 year residual service on the date of occurrence of vacancy for which selection is being made shall be eligible for consideration. The RR-2006 also provide that selection is to be made by the Selection Committee under the Chairmanship of the Cabinet Secretary and comprising of the Principal Secretary to Prime Minister, Home Secretary, Secretary (Personnel) and Secretary, Department of Revenue. It is noted that consequent to RR-2006. Guidelines for the Selection Committee were issued with the approval of the Prime Minister. As per the guidelines, instead of circulating vacancy, a panel for a year is to be prepared calculating on the basis of number of anticipated vacancies X 1.5 rounded to the nearest whole number. It is further noticed that the official respondents adopt the procedure of getting approval of the ACC and the selection and appointment is made in order given in the panel with the approval of the Finance Minister. In case it is considered necessary to deviate from the panel, the same is sent with full justification to the ACC for approval with the concurrence of the Finance Minister. If a panelist whose turn has come for appointment as a Member and he has less than one year of residual service on the date of occurrence of vacancy, he will be passed over. It is noticed that the provisions of para (e) of the guidelines read with Note 2 to the Column 12 of the RR that the preparation of the panel is an important process leading to the appointment. We also find that the official respondents have taken into account the dates of occurrence of vacancies, for the panel preparation ahead of the financial year in order to facilitate the selection process. It is further found that the panel is prepared on financial year basis, for consideration for inclusion in the panel, the crucial date for deciding the eligibility being 1st April of the year for which panel is prepared irrespective of the closing date for submission of application or the date of holding of the meeting of the Selection Committee. In our considered opinion that cut off date for deciding eligibility with respect to age, educational qualification, qualifying service experience is adopted for all Selections/Appointments/Recruitments by all Government agencies, and as such adopting 1st of April for the financial year is right approach subject of course to the dates prescribed in RR like the date of occurrence of vacancy in the financial year.
19. In the background of the above conclusion arrived at, we notice that pursuant to the circulars calling for application and willingness for being considered for selection for appointment to the post of Member, CBDT during the year 2010-11, 40 officers submitted their willingness. The official respondents having considered those applications and taking into account, one year service in the post of Chief Commissioner of Income Tax/ equivalent posts in the cadre and minimum residual service of 1 year as on 1st April of panel year i.e. 1/4/2010, found that there were 26 officers eligible to be examined. However, it is informed that the selection for the panel preparation for the year 2010-11 could not be finalized 1st October, 2010 as the One Man Committee (Shri P.G. Mankad) was reviewing the selection in view of the representations of some of the applicants. Six vacancies were anticipated during the year 2010-11 (two vacancies on 31.05.2010, one vacancy on 31.12.2010; two vacancies on 28.02.2011 and one vacancy on 31.03.2011) on account of vacancies arising of various superannuation taking place on the respective dates. Hence, as per the Guidelines, against these six anticipated vacancies, a panel of 9 officers was to be prepared and the zone of consideration for Selection Committee was fixed as 22. The crucial date of 1st April, 2010 was adopted by the Official respondents for deciding eligibility (for inclusion in the panel) on two counts viz. (i) one year service in the grade of Chief Commissioner/equivalent and (ii) for reckoning the residual service of one year. The Officers who became eligible on both crucial dates should be considered for selection and their vigilance status, impeccable integrity, ACR grading etc. were assessed.
20. Crucial date to draw a panel for the entire financial year may be 1st April but for the consideration of the eligible candidates and subsequent appointment definitely the RR prescribes the date of vacancy as the crucial date which condition is mandatory. Those who are in the panel but do not have one year of residual service on the date of vacancy, such empanelled persons cannot be offered appointment as Member, CBDT. We are of the opinion that out of two crucial dates, one is for administrative convenience i.e. 1st April, but the second crucial date i.e. date of the vacancy is statutory in nature and mandatory for compliance of the RR prescription. It is the respondents to ensure that officers being considered are eligible in respect of both crucial dates.
xxx xxx xxx
23. The respondents took the ground that the eligibility of the persons as on 01.04.2010 was taken into account to finalise the zone of consideration. As on 01.06.2010, the date on which the first two vacancies arose, two officers (Shri Milap Jain and Shri A. K. Basu) were not having the residual service of one year but Shri A. K. Basu, as per respondents, had one year residual service as on 01.04.2010. As on 31st December, 2010, i.e. the date of the subsequent vacancy, 7 officers (A. Prasad, Qaiser Shamim, Kamlesh Argal, Kalyan Chaudhury, Mukesh Bhanti, Anjani Kumar and K. P. Singh) were not having the one year residual service. It was argued by the counsel for the official respondents that if the argument of the applicants and the statutory RR eligibility condition are to be followed, and the officers having the residual service of one year on the date of occurrence of the vacancy are to be considered for inclusion in the panel, all these 9 officers are to be excluded from the zone of consideration. In their place, another 9 officers should have been included in the zone of consideration. That is the interpretation of the statutory provision. This would entirely change the complexion of the panel. Let us assume that one or more unanticipated vacancies arise prior to the date (s) on which these 9 officers had fallen short of the one year residual service, may become eligible, but it must be noted that the unanticipated vacancies arise due to voluntary retirement or punishment of removal/dismissal, or death etc. Panel is not prepared for such contingencies. The empanelment process as stated in the RR is meant for the anticipated vacancies. We, therefore, do not accept the argument of the Official respondents that the panel was also prepared to meet the contingencies of unanticipated vacancies, which may not arise at all.
24. The learned counsel for the respondents in one of his contentions submitted that the relevant date for applying the eligibility conditions in the present case was 1 April, 2010 as the financial year wise panel was prepared and selection was not made vacancy wise. He urged that it would be arbitrary to shift this date to the date of the meeting of the Selection Committee, which is 1 Oct, 2010 or the date on which the 1st vacancy actually arose, which is 31 May, 2010. Though, in our above analysis, we have accepted the 1st April as one of the crucial dates for administrative convenience to draw up a Panel for the financial year and to consider ten years of ACRs available on that date, but the crucial date prescribed in the statutory RR cannot be ignored or even violated. By simply choosing the date of the Selection Committee meeting appropriately, it will be possible to disqualify candidates and consequently include others lower down in seniority, thereby changing the composition of the zone of consideration and even the final panel altogether. This will be quite arbitrary. A careful reading of the RR and the Guidelines, we note that there are 4 major eligibility conditions (1) minimum of one year of residual service on the date of vacancy; (2) minimum 1 year qualifying service as Chief Commissioner; (3) 15 years experience in the administration and running of the direct tax administration and (4) out of the said 15 years, at least 10 years experience in the field formations of CBDT. In case of eligibility conditions at (2), (3) and (4) and considering the recorded and available ACRs, 1st April would be the crucial date, but with regard to the eligibility condition at (1) above, the RR being very specific, the eligibility to have minimum one year of residual service has to be adopted even to consider for empanelment. Thus, the clause given in the Guidelines dated 8.6.2006 though clarifies for deletion of such names from the panel, in our view, the said provision of the guideline may meet the requirements of a panel prepared for the year 2006-07 but will not meet the explicit provision in the RR for the subsequent years. If the guidelines are to be followed the 1st respondent was duty bound to carry out amendments in the RR. Though more than 4 years have passed, no amendment of RR has been done. Thus, we are of the considered opinion that the official respondents have faulted in including the names of such persons in the zone of consideration who are not eligible as per condition (1) above i.e. minimum of one year of residual service on the date of vacancy. RR is sacrosanct and the provisions on the eligibility criteria to be taken into account, more specifically, one year residual service on the date of occurrence of vacancy has to be mandatorily adopted.
11. The Respondents on the other hand submitted that the process of selection including various stages involved have been meticulously followed after due application of mind, to the provisions of the Rules, the requirements of service, and the guidelines issued after approval by Prime Minister. They clarified that the said guidelines have filled up the gaps in the rules and inter alia provides the details and norms to be followed in the selection process. The requirement of qualifying service as prescribed in the Recruitment Rules has been duly regarded by bringing together various steps and procedures in the process of selection into a workable framework. No rights of any of employee have been infringed as all possible eligible candidates with one year service as Chief Commissioner of Income Tax have been provided with the opportunity of being considered for selection.
12. Learned counsel for respondents, Shri Rajeev Kumar has stated that the Guidelines dated 08.06.2006 was approved by the Prime Minister and according to them, in order to save time, instead of circulating each vacancy separately, a panel valid for one year (calculated on the basis of number of anticipated vacancies x 1.5 rounded to nearest whole number) will be prepared. After ACC has approved this panel, selection will be made strictly in the order given in the panel, with the approval of the Finance Minister. In case it is felt that a deviation from the panel is necessary, the same will be sent with full justification to the ACC for approval with the concurrence of the Finance Minister and if a panelist whose turn has come for Member has less than one year of residual service on the date of occurrence of vacancy, he will be passed over without any further procedure.
13. We have heard learned senior counsel for applicant assisted by the learned counsel, Shri S.K. Gupta and learned counsel for respondents, Shri Rajeev Kumar. The entire controversy in this case revolves around the clause pertaining to one year service in HAG Grade in the amended Central Board of Excise and Customs (Chairman and Members) Recruitment Rules, 2006 pertaining to the recruitment of Members which reads as under:-
(i) Officers of the Central Government having one year regular service in the grade of HAG pay scale of Rs.67000-79000/- per month.
In our considered view the words date of occurrence of vacancy in the aforesaid is of paramount importance. In the present case, the Respondents, vide their letter dated 21.10.2011, notified that some posts of Members in the Central Board of Excise and Customs were likely to fall vacant in the financial year 2012-13. In the said letter also the aforesaid clause has been quoted verbatim. It is an admitted position by the parties in this OA that the number of vacancies to be filled up during the said financial year was four (4) and the dates of their occurrences were 01.05.2012, 01.08.2012, 04.09.2012 and 31.12.2012 respectively. Had those vacancies been filled up individually through separate notification inviting applications as was the case before the issuance of the Guidelines dated 08.06.2006, the controversy or the confusion which has arisen in the case would not have happened. For example, for the vacancy which has occurred on 01.05.2012, had there been a separate notification, there would not have been any doubt in the minds of the prospective Applicants or in the minds of the Respondents as on what date candidate should have completed one year service in HAG Grade. In other words, only the eligible officers who have actually rendered one year service in HAG Grade as on 01.05.2012 would have applied. Same would have been the cases of the vacancies which have arisen on 01.08.2012, 04.09.2012 and 31.12.2012. While amending the aforesaid Recruitment Rules in the years 2008 and 2012 also, there was no change made with regard to the aforesaid clause. The confusion occurred in the matter with the issuance of the Guidelines for selection of Chairmen and Members of Central Board of Direct Taxes (CBDT) and Central Board of Direct Taxes (CBDT) and Central Board of Excise and Customs (CBEC) by the Cabinet Secretariat with the approval of the Prime Minister on 08.06.2006. In other words, the confusion now created by the Respondents in this case was an avoidable one if the provisions contained in the Recruitment Rules were strictly complied with. However, since it has been mentioned in Guidelines (b) thereof that in order to save time, instead of circulating each vacancy separately, a panel valid for one year (calculated on the basis of number of anticipated vacancies x 1.5 rounded to nearest whole number) will be prepared, the Respondents, without any basis, related the one year qualifying service to the beginning of the financial year concerned.
14. Further, in our considered view, the co-ordinate Bench of this Tribunal in OA No. 3823/2010 and connected cases (supra) decided on 02.09.2011 specifically laid down the principle about counting of one years service in the case of Chief Commissioner of Income Tax. Even at the cost of repetition it is worthwhile to extract its following crucial part once again here as under:-
20. Crucial date to draw a panel for the entire financial year may be 1st April but for the consideration of the eligible candidates and subsequent appointment definitely the RR prescribes the date of vacancy as the crucial date which condition is mandatory. Those who are in the panel but do not have one year of residual service on the date of vacancy, such empanelled persons cannot be offered appointment as Member, CBDT. We are of the opinion that out of two crucial dates, one is for administrative convenience i.e. 1st April, but the second crucial date i.e. date of the vacancy is statutory in nature and mandatory for compliance of the RR prescription. It is the respondents to ensure that officers being considered are eligible in respect of both crucial dates.
15. In view of the above factual and legal positions, we allow this OA partially. Consequently, we quash and set aside the Respondents impugned letter F.No.A.12026/15/2011-Ad.I dated 16.11.2012 inviting applications for the post of Member in the Central Board of Excise and Customs in the Department of Revenue in the pay scale of Rs.80,000/- (Fixed) in so far as it relates to post which has fallen vacant on 31.12.2012 and the subsequent process made in the matter. However, we are not inclined to accept the prayer of the Applicant to quash and set aside the panel for the post of Member, CBEC, as prepared for the year 2012-13 and to quash the appointments of Respondents 3 to 5. The dates of occurrence of the vacancies against which they have been appointed being 01.05.2012, 01.08.2012 and 04.09.2012, as they were found to have the requisite one years required service in the prescribed post even as on 01.04.2012, the question of considering them not qualified for the post does not arise. As the Applicant has already rendered more than one year of regular service in the prescribed post as on 31.12.2012, i.e., the date of occurrence of the 4th vacancy in the financial year 2012-13, the Selection Committee ought to have considered him for appointment as Member, CBEC in its initial meeting itself and not to exclude him from the eligibility list. We, therefore, direct the official Respondents to enlarge panel of the year 2012-13 as per the relevant Recruitment Rules by considering the Applicant for the vacancy arising on 31.12.2012 as per his merit and as per rules as he has already been promoted as Chief Commissioner of Income Tax on 09.11.2011 and fulfilled the requirement of the Recruitment Rules. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh